This matter is before the Authority on exceptions to the
award of Arbitrator James F. Doherty filed by the Union under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions.

The Arbitrator denied a grievance which asserted that the
grievant was improperly denied a monetary performance award. The Union contends
that the Arbitrator's award is deficient because the Arbitrator misapplied
Agency regulations and misinterpreted the parties' collective bargaining
agreement.

For the reasons stated below, we will remand the award to
the parties to have them obtain a clarification of the award from the
Arbitrator.

II. Background and Arbitrator's Award

In August 1988, the grievant received an overall
performance rating for the period of June 1987 through July 1988 of "Highly
Successful." Award at 2. The grievant appealed his rating to the Performance
Rating Review Panel and his rating was subsequently raised to "Outstanding."
Id. Following an inquiry by the grievant "as to the amount of his cash
award[,]" the grievant was informed that he had not been recommended for a
monetary performance award. Id. The Union filed a grievance over the
Agency's failure to recommend the grievant for a cash award. The grievance was
not resolved and was submitted to arbitration.

The Arbitrator first ruled on two procedural issues and
found that the grievance was timely filed and that the Union was not precluded
from arbitration because of a 6-month delay in setting the arbitration date.
Next, the Arbitrator considered the issue of whether the grievant was
"improperly denied a monetary award under the provisions of the negotiated
agreement[.]" Id. at 1.

The Arbitrator stated that "there [was] a threshold
question as to whether the grievance [was] of the type covered under the
[parties'] collective bargaining agreement." Award at 7. He concluded that the
grievance was not covered. The Arbitrator stated that Article X of the parties'
agreement "excludes from the contractual definition and enumeration of
grievances 'employee performance appraisal' complaints or appeals."
Id.

The Arbitrator also stated that Article XVIII, section 1
provides that "[b]argaining unit employee's performance will be appraised in
accordance with the requirements of Section 203[,] Title II of the Civil
Service Reform Act of 197[8][,] and DMA[I]NST. 1434.1 [Defense Mapping Agency
Instruction 1434.1]." Id., quoting the parties' agreement. The
Arbitrator noted that DMAINST 1434.1 had been "supplanted" by DMAM 1434.3
(Defense Mapping Agency Performance Management Systems Manual 1434.3), which
provides in Chapter 3, paragraph 2.g that "[t]he failure of DMA to pay a
performance award may not be appealed/grieved." Id.

The Arbitrator found that "[t]hese provisions read
together are clear and unambiguous." Id. He stated that the Union
produced a number of documents to clarify its position, and determined that
"[n]one of these documents contain language which directly or indirectly
removes the barrier to the contractual grievance procedure." Id.
Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator "ignored or
misapplied existing regulations when deciding that the [U]nion griev[a]nce . .
. had no merit." Exceptions at 1. The Union states that the Arbitrator "used
[DMAM 1434.3] as the main basis for his decision." Id. The Union argues
that DMAINST 1434.1(*) was in effect
before DMAM 1434.3 was published in 1986. The Union states that DMAINST 1434.1
"contained no bar to grievance over this issue." Id. Further, the Union
contends that: (1) the parties were in negotiations over the provision in DMAM
1434.3 barring grievances over awards; (2) the Union objected to this
provision; and (3) the provision "has never been implemented at [the Agency]
and is not presently in effect[.]" The Union asserts that the Arbitrator's
reliance on DMAM 1434.3 "serves as the central justification for his decision"
and "constitutes grevious [sic] and harmful error[.]" Id.

The Union also contends that the Arbitrator "base[d] his
decision [to deny the grievance] in part on a misinterpretation of the
negotiated agreement which bars contested performance appraisals from the
grievance process." Id., referencing Article X of the parties'
agreement. The Union argues that "[n]othing in Article X, Article XVIII or
Article XIX (Incentive Award Program) specifically bars a grievance over this
issue." Id.

B. Agency's Opposition

The Agency argues that the Union provided no evidence to
support its claim that DMAM 1434.3, which bars grievances over performance
awards, was never implemented. The Agency asserts that "Union Exhibit 10 shows
that on 28 June 1988, [the Union and the Agency] agreed to language . . . that
'. . . Employee awards will be processed in accordance with Chapter 3 of DMAM
1434.3 [dated] 25 November 1986.'" Opposition at 1 (referencing Enclosure 1 of
Opposition). The Agency claims that DMAINST 1434.1, the superseded regulation
relied on by the Union, "was not submitted as evidence at the hearing, nor was
it referenced in the Union's post-hearing brief." Id. Further, the
Agency claims that "the [A]gency administrative grievance procedures in place
at the [time of the grievance] and still in place do not cover receipt of or
failure to receive a performance award." Id.

The Agency asserts that the Union's contention that "the
Arbitrator erred in finding that the negotiated grievance procedure excludes
matters of monetary award related to outstanding performance ratings" is
"totally without merit." Id. The Agency contends that the Union's
exceptions constitute "nothing more than the Union's disagreement with the
reasoning and conclusions of the [A]rbitrator" and that the Union "fails to
demonstrate any requirement in law, rule, regulation, or the negotiated
agreement mandating a monetary award for outstanding performance ratings."
Id.

IV. Analysis and Conclusions

Section 7116(a)(7) of the Statute provides that an agency
may not "enforce any rule or regulation (other than a rule or regulation
implementing [5 U.S.C. § 2302]) which is in conflict with any applicable
collective bargaining agreement if the agreement was in effect before the date
the rule or regulation was prescribed[.]" SeeU.S. Department of the
Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and
American Federation of Government Employees, Local 2022, 37 FLRA 186, 193
(1990); U.S. Patent and Trademark Office and Patent Office Professional
Association, 32 FLRA 1168, 1174 (1988). However, nothing precludes the
parties from agreeing to allow subsequently issued regulations to override a
preexisting collective bargaining agreement.

It is undisputed that DMAM 1434.3 is an Agency regulation
that was issued after the parties' collective bargaining agreement became
effective, and that the Arbitrator relied on DMAM 1434.3 in rendering his award
in this case. However, as noted above, the Agency and the Union are in dispute
as to whether DMAM 1434.3 applies in this case. The Arbitrator found that
DMAINST 1434.1 "ha[d] been supplanted by [DMAM] 1434.3." Award at 7. It is
unclear whether the Arbitrator's statement is intended to constitute a finding
that the parties had agreed that DMAM 1434.3 overrides their preexisting
collective bargaining agreement or whether the Arbitrator's statement does not
address that issue.

In order to provide a record on which to determine
whether the award is deficient under the Statute, the award must be remanded to
the parties to have them obtain a clarification from the Arbitrator. SeeDepartment of the Army, 6th Infantry Division (Light), Fort Richardson,
Alaska and American Federation of Government Employees, Local 1834, Fort
Wainwright, Alaska, 35 FLRA 42, 46 (1990). We will remand the award to the
parties to request the Arbitrator to clarify his award to determine whether the
parties had agreed that DMAM 1434.3 overrides their preexisting collective
bargaining agreement and to resolve the grievance accordingly. If the
Arbitrator finds that the parties had agreed that DMAM 1434.3 overrides their
preexisting collective bargaining agreement, DMAM 1434.3 may be considered by
the Arbitrator in the resolution of the grievance. If the Arbitrator finds that
the parties did not agree that DMAM 1434.3 overrides their preexisting
collective bargaining agreement, DMAM 1434.3 may not be considered by the
Arbitrator in the resolution of the grievance.

In view of our decision, we do not address the Union's
contention that the Arbitrator misinterpreted the parties' collective
bargaining agreement.

V. Decision

Pursuant to section 2425.4 of the Authority's Rules and
Regulations, the Arbitrator's award is remanded to the parties. The parties are
directed to resubmit the award to the Arbitrator to obtain a clarification of
the award. The Arbitrator should clarify his award to determine whether the
parties had agreed that DMAM 1434.3 overrides their preexisting collective
bargaining agreement and to resolve the grievance accordingly.

On receipt of the award, as clarified, either party may
timely file with the Authority exceptions to that award.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

*/ In its exceptions, the Union inadvertently refers to
the regulation as DMAM 1434.1 instead of DMAINST 1434.1.